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From Adversarial Legalism to Collaborative Problem-Solving: A Pragmatic Turn in American Criminal Justice

Abstract: Adversarial legalism ("AL"), as Professor Robert Kagan argues, is the American way of law. It is caused by a mismatch between sweeping political demands and a fragmented government system, and it is entrenched by a legal culture that makes vigorous use of existing litigation mechanisms. This paper considers a recent phenomenon among public interest lawyers - a cultural shift from liberal legalism to legal pragmatism - and implications for AL. The author describes one case of legal pragmatism in action, in which state and non-state actors have collaborated to pioneer a problem-solving approach to “low-level” crime. This case, taken as an instance of a broader movement in U.S. criminal justice, illustrates how enterprising groups of legal professionals can catalyze structural changes that chip away at AL’s foundations.